SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1393-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS J. PRETO,

Defendant-Appellant.

__________________________

Submitted February 24, 2020 – Decided June 10, 2020

Before Judges Ostrer and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Indictment Nos. 11-05-0884

and 08-10-1541. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew Robert Burroughs, Designated 

Counsel, on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel J. Marzarella, Chief 

Appellate Attorney, of counsel; William Kyle Meighan, 

Senior Assistant Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant, Francis Preto, appeals from the denial of his petition for postconviction relief (PCR). In 2012, he was convicted at trial for conspiring and 

attempting to kill his wife and for conspiring to kill a fellow county jail inmate

who had reported the murder plot to authorities. Defendant contends his trial 

counsel rendered ineffective assistance by not calling certain witnesses, by not 

effectively cross-examining his wife, and by not communicating with him about 

the case before trial. 

After reviewing the record in light of the applicable legal principles, we 

reject defendant's contentions and affirm the denial of his PCR petition 

substantially for the reasons set forth by Judge Guy Ryan in a thorough and wellreasoned thirty-two-page opinion. As the PCR court aptly noted, defendant 

failed to support his contentions with competent proofs that would warrant an 

evidentiary hearing, much less a new trial. We conclude that defendant has not 

established that his trial counsel's performance was constitutionally deficient or 

that any potential ineffective assistance had a reasonable probability of changing 

the jury verdict. See generally Strickland v. Washington, 466 U.S. 668 (1984) 

(establishing a two-part test for addressing ineffective assistance of counsel 

claims). 
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I.

Defendant was initially tried in early 2011. The first trial resulted in a 

hung jury and mistrial. When he was retried in the fall of 2012, he was 

represented by a different attorney than the one who represented him at the first 

trial. This time, the jury found defendant guilty of first-degree conspiracy to 

murder his wife, first-degree attempted murder of his wife, and first-degree 

conspiracy to murder Timothy Milton. The jury acquitted defendant of

attempting to murder Milton. Defendant was sentenced to an aggregate term of 

16 years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This 

sentence runs consecutively to the sentence imposed on an unrelated prior 

conviction. 

On direct appeal, we affirmed the trial convictions but remanded the 

matter to correct the calculation of gap-time and jail credits. State v. Preto, No. 

A-4212-12 (App. Div. July 8, 2016) (slip op. at 16). The Supreme Court denied 

certification. State v. Preto, 228 N.J. 483 (2017). 

Defendant thereafter filed a pro se petition for post-conviction relief. 

Judge Ryan heard oral argument and thereafter issued a written opinion denying 

defendant's PCR petition without an evidentiary hearing. Defendant now 

appeals from that decision.
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II.

The facts adduced by the State at trial are recounted in our prior opinion 

and need not be repeated at length in this opinion. It is sufficient to note that 

the State presented testimony and electronically recorded conversations to prove 

that defendant conspired and attempted to murder both his ex-wife and a fellow 

inmate at the Ocean County Jail, Milton. While in jail, defendant sought 

Milton's assistance in a plot to murder Ms. Preto before she could divorce 

defendant. When defendant learned that Milton reported the murder plot to the 

authorities, he attempted to hire other individuals to kill Milton. The defense 

argued that defendant's threats were mere puffery and were made in response to 

a jailhouse culture that required him to act tough. 

III.

Defendant presents the following contentions for our consideration:1

POINT I

AS DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL, HE WAS ENTITLED 

TO POST-CONVICTION RELIEF. 

(1) Trial counsel failed to ensure the 

exculpatory testimony of Harry Reilly. 

1

 Defendant made several other arguments before the PCR court that he does 

not raise on this appeal. 
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(2) Trial counsel's failure to effectively 

communicate with her client prejudiced his 

right to effective legal representation. 

(3) Trial counsel failed to effectively crossexamine defendant's wife. 

(4) Trial counsel failed to present the 

exculpatory testimony of Joseph Collins 

(aka "Joe Green"). 

(5) Trial counsel's cumulative errors 

denied her client effective legal 

representation. 

POINT II

AS THERE ARE GENUINE ISSUES OF MATERIAL 

FACTS IN DISPUTE, AN EVIDENTIARY HEARING 

WAS REQUIRED. 

IV.

We begin our analysis by acknowledging the legal principles that govern 

this appeal. Post-conviction relief serves the same function as a federal writ of

habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). A petitioner must 

establish grounds for relief by a preponderance of the evidence. State v. 

Mitchell, 126 N.J. 565, 579 (1992) (citing State v. Marshall, 244 N.J. Super. 60, 

69 (Law Div. 1990)). To satisfy this burden, the petitioner must allege specific 

facts, "which, if believed, would provide the court with an adequate basis on 

which to rest its decision." Ibid.
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Defendant claims his trial counsel rendered constitutionally deficient 

representation. Both the Sixth Amendment of the United States Constitution 

and Article 1, paragraph 10 of the New Jersey Constitution guarantee the right 

to effective assistance of counsel at all stages of criminal proceedings. 

Strickland, 466 U.S. at 686 (citing McMann v. Richardson, 397 U.S. 759, 771 

n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish an ineffective 

assistance claim, a defendant must meet the two-part test articulated in 

Strickland. Fritz, 105 N.J. at 58. "First, the defendant must show that counsel's 

performance was deficient. . . . Second, the defendant must show that the 

deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. 

To satisfy the first prong of the Strickland test, a defendant must show 

"that counsel made errors so serious that counsel was not functioning as the 

'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. 

Reviewing courts indulge in a "strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance." Id. at 689. The 

fact that a trial strategy fails to obtain for a defendant the optimal outcome is 

insufficient to show that counsel was ineffective. State v. DiFrisco, 174 N.J. 

195, 220 (2002) (citing State v. Bey, 161 N.J. 233, 251 (1999)).
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The second prong of the Strickland test requires the defendant to show 

"that counsel's errors were so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently, 

counsel's errors must create a "reasonable probability" that the outcome of the 

proceedings would have been different than if counsel had not made the errors. 

Id. at 694. This prong is particularly demanding. "The error committed must 

be so serious as to undermine the court's confidence in the jury's verdict or the 

result reached." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. 

Castagna, 187 N.J. 293, 315 (2006)). 

Short of obtaining immediate relief, a defendant may prove that an 

evidentiary hearing is warranted to develop the factual record in connection with 

his or her ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR 

court should grant an evidentiary hearing when a defendant is able to prove a 

prima facie case of ineffective assistance of counsel, there are material issues of 

disputed fact that must be resolved with evidence outside of the record, and the 

hearing is necessary to resolve the claims for relief. R. 3:22-10(b). To meet the 

burden of proving a prima facie case, a defendant must show a reasonable 

likelihood of success under the Strickland test. Preciose, 129 N.J. at 463. 

"[C]ourts should view the facts in the light most favorable to a defendant to 
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determine whether a defendant has established a prima facie claim." Id. at 462–

63. 

Importantly for purposes of this appeal, "[i]n order to establish a prima 

facie claim, a petitioner must do more than make bald assertions that [he or she] 

was denied the effective assistance of counsel." State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999). The petitioner must allege specific facts 

sufficient to support a prima facie claim. Id. at 168 (citing Mitchell, 126 N.J. at 

589). Furthermore, the petitioner must present these facts in the form of 

admissible evidence. In other words, the relevant facts must be shown through 

"affidavits or certifications based upon the personal knowledge of the affiant or 

the person making the certification." Id. at 170; see also R. 3:22-10(c) ("Any 

factual assertion that provides the predicate for a claim of relief must be made 

by an affidavit or certification . . . and based upon personal knowledge of the 

declarant before the court may grant an evidentiary hearing."). 

As a general proposition, we defer to a PCR court's factual findings "when 

supported by adequate, substantial and credible evidence." State v. Harris, 181 

N.J. 391, 415 (2004) (quoting Toll Bros v. Twp. of W. Windsor, 173 N.J. 502, 

549 (2002)). However, when the trial court does not hold an evidentiary hearing, 

we "may exercise de novo review over the factual inferences drawn from the 
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documentary record." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 

291 n.4 (3d Cir. 1991)). Similarly, we review de novo the PCR court's legal 

conclusions. State v. Nash, 212 N.J. 518, 540–41 (2013) (citing Harris, 181 N.J. 

at 415–16).

V.

A.

Defendant argues his trial counsel was ineffective for failing to call Harry 

Reilly as a witness. Defendant claims Reilly would have provided testimony 

supporting defendant's theory that he was merely "talking tough" when he was 

discussing murdering his wife and Milton. Additionally, defendant argues 

Reilly would have testified that the conspiracy between himself, defendant, and 

Milton was to steal "WaveRunners"2from Ms. Preto, not to kill her. 

While Reilly was on defendant's witness list, counsel and the trial court 

were unable to locate Reilly during trial after corresponding with the Ocean 

County Jail and the probation department. Defendant contends his trial counsel 

should have pursued Reilly's whereabouts more aggressively. We note that 

2

 "WaveRunner" is a trademarked name for a type of personal watercraft 

produced by Yamaha Motor Corporation. 
10 A-1393-18T1

defendant was unable to locate Reilly while preparing his PCR and 

acknowledges he does not even know if Reilly is still alive. 

 We reject defendant's PCR claim as nothing more than a "bald 

assertion[]." Cummings, 321 N.J. Super. at 170. As we have noted, a defendant 

must support the factual assertions with competent proofs, i.e., "affidavit[s] or 

certification[s] pursuant to Rule 1:4-4 and based upon personal knowledge of 

the declarant." R. 3:22-10(c). Here, defendant failed to supply an affidavit or 

certification made by himself, his first trial attorney, or Reilly summarizing the 

testimony Reilly would have provided had he been called as a witness. 

Defendant's explanation at oral argument is not comparable to an affidavit 

or certification pursuant to Rule 1:4-4. Certifications or affidavits submitted 

pursuant to Rule 1:4-4(b) subject the declarant to punishment if their statements 

are willfully false. Defendant was not under oath when he spoke to the court 

concerning Reilly's potential testimony. Accordingly, the PCR court correctly 

determined that defendant's contentions concerning Reilly are unsupported in 

the record. Additionally, Judge Ryan found it unlikely Reilly could have 

provided testimony supporting defendant's "talking tough" defense because the 

trial court had precluded defendant from calling other witnesses to provide 

similar testimony and that decision was affirmed on direct appeal. 
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 Even putting aside that defendant's arguments with respect to Reilly are 

bald assertions, defendant's own electronically recorded statements would have 

contradicted Reilly's hypothesized testimony. In a jailhouse conversation 

recorded on July 2, 2008, for example, defendant and Milton discussed the 

details of the plan to kill Ms. Preto, including Milton's payment for killing Ms. 

Preto and the logistics of dumping her body. Defendant told Milton he would 

pay $10,000 for Milton "to take her out." At no point in any of the recorded 

conversations between defendant and Milton does anyone refer to a scheme to 

steal personal watercraft. 

We add that in order to succeed on an ineffective assistance claim based 

on trial counsel's failure to call a witness; a defendant must "overcome the 

presumption that, under the circumstances," the failure to call the witness "might 

be considered sound trial strategy." State v. Arthur, 184 N.J. 307, 319 (2005) 

(quoting Strickland, 466 U.S. at 689). Determining which witnesses to call to 

the stand is an "an art." Id. at 321 (quoting Strickland, 466 U.S. at 693). 

A trial attorney must consider what testimony a witness 

can be expected to give, whether the witness's 

testimony will be subject to effective impeachment by 

prior inconsistent statements or other means, whether 

the witness is likely to contradict the testimony of other 

witnesses the attorney intends to present and thereby 

undermine their credibility, whether the trier of fact is 
12 A-1393-18T1

likely to find the witness credible, and a variety of other 

tangible and intangible factors.

[Id. at 320–21.]

Given the difficulty inherent in selecting witnesses, a court's review of counsel's 

decision must be "highly deferential." Id. at 321 (quoting Strickland, 466 U.S. 

at 689).

In this instance, in exercising her professional judgment, defendant's trial 

counsel was permitted, if not obligated, to consider the credibility of Reilly's 

testimony in light of the other evidence presented at trial. Id. at 320–21. 

Defendant explained at oral argument that in preparing for defendant's second 

trial, his second trial counsel read all the materials supplied by defendant's first 

trial counsel. Counsel's decision to not make further effort to locate and 

subpoena Reilly was thus made with an understanding that Reilly would have 

provided testimony contradicted by defendant's own admissions, reducing 

Reilly's credibility and the value of his testimony. Ibid. In these circumstances, 

we agree with the PCR court that defendant has provided no basis for concluding 

that counsel's performance with respect to this potential witness was 

unreasonable or otherwise constitutionally deficient. 

Relatedly, in assessing the potential impact of an absent witness, we must 

consider the defendant's overall trial strategy. See State v. L.A., 433 N.J. Super. 
13 A-1393-18T1

1, 16 (App. Div. 2013) (noting that the importance of an absent witness must be 

judged in light of the "interplay of the uncalled witness[] with the actual defense 

witnesses called" (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 

1996))). Throughout trial, defendant argued his threats were puffery and the 

product of the "talking tough" culture in the jail. Potential testimony from 

Reilly that defendant was planning to steal personal watercraft from his ex-wife 

would not have supported defendant's "talking tough" theory and could have 

distracted the jury from counsel's principal defense strategy. 

In sum, given the uncertainty concerning Reilly's testimony, as well as 

Reilly's criminal record and history of drug addiction, we agree with the PCR 

court's conclusion that it was reasonable that counsel did not further pursue 

Reilly's whereabouts. 

B.

Defendant next asserts that his trial counsel was ineffective for failing to 

call Joseph Collins as a witness. Defendant claims Collins was familiar with 

defendant's case and could have provided helpful testimony. Collins, who is 

reputed to be an upper echelon gang member, testified in a Rule 104 hearing 

after which defendant and trial counsel agreed not to call him as a witness at 

trial. Defendant now contends his counsel rendered ineffective assistance by 
14 A-1393-18T1

talking him out of calling Collins as a witness. Specifically, defendant contends 

that Collins's gang affiliation should not have been a sufficient reason for 

counsel to convince defendant to not have Collins testify. 

As we have noted, a PCR court's review of counsel's decision not to call 

a witness is "highly deferential." Arthur, 184 N.J. at 321 (quoting Strickland, 

466 U.S. at 689). Applying that deferential standard, we agree with Judge 

Ryan's conclusion that trial counsel was not ineffective in determining not to 

call Collins as a trial witness. Judge Ryan aptly noted that Collins's testimony 

was likely in the same vein as other inadmissible testimony relating to 

defendant's "talking tough" defense. Although Collins may have been able to 

provide some admissible testimony concerning his encounters with defendant 

while they were both in prison, the PCR court appropriately deferred to trial 

counsel's strategic decision not to call Collins as a witness. 

We conclude it was hardly unreasonable for trial counsel to determine that 

it was in her client's interest to avoid calling a witness with a gang affiliation3

and whose testimony would alert the jury that defendant had previously served 

3

 We note that defendant asserts that Collins's status as an "upper echelon" gang 

member somehow would have increased his credibility. 
15 A-1393-18T1

time in State Prison. Accordingly, the PCR court properly refused to second 

guess trial counsel. 

Furthermore, we hold it is not reasonably probable that Collins's testimony 

would have changed the jury's determination that defendant conspired to murder 

Milton. Strickland, 466 U.S. at 694. It bears emphasis that the State played for 

the jury a recorded conversation in which defendant arranged to have Maurice 

Pearce murder Milton. During the recorded conversation with Pearce, defendant 

told Pearce he could supply him with a gun. The two men discussed the different 

guns Pearce could use. Defendant concluded that Pearce could use a lower 

caliber gun so long as he "finish[ed] [Milton] off, two to the head." They also 

discussed the clothes Pearce would wear, that Pearce should wear two gloves 

during the killing, and how he would leave the scene after killing Milton. 

Defendant provided Pearce with both Milton's address and his father's contact 

information, including his street address and telephone number. Collins's 

testimony would not have undermined the incriminating value of this recorded 

conversation in any material manner. 

C.

Defendant next contends his trial counsel was ineffective for failing to 

communicate with him prior to trial. Defendant claims that he had only two or 
16 A-1393-18T1

three conversations with an investigator acting on counsel's behalf. Defendant 

hypothesizes that additional communication before trial would have provided 

the "extra push necessary to win an acquittal." 

As with his claim concerning Reilly's testimony, defendant has failed to 

support this ineffective assistance claim with the necessary competent proofs. 

Defendant has not submitted an affidavit or certification establishing the extent 

to which counsel and defendant communicated prior to trial and establishing that 

additional preparation would have affected the outcome of the trial. Defendant's 

claim that counsel failed to communicate with him prior to trial, therefore, is yet 

another "bald assertion[]" unsupported by the record. Cummings, 321 N.J. 

Super. at 170. Furthermore, as the PCR court noted, defendant never raised to 

the trial judge any concern with having insufficient time to prepare with his 

attorney regarding any aspect of his trial strategy. We therefore agree with the 

PCR court that defendant has failed to establish either prong of the 

Strickland/Fritz test with respect to his pretrial interactions with defense counsel 

and her trial preparation. 

D.

We turn next to defendant's contention that his trial counsel was 

ineffective in the manner in which she cross-examined his wife. Defendant 
17 A-1393-18T1

acknowledges that counsel extensively cross-examined his wife concerning their 

personal history and her potential bias in view of the divorce proceedings. 

Defendant nonetheless claims counsel should have used the cross-examination 

to put his marriage in a more positive light by eliciting testimony that he was a 

"good husband." The PCR court found this argument to be absurd given that 

defendant was on trial for attempting to murder his wife. We agree. 

Like his other ineffective assistance claims, defendant's supposition that 

his wife would have provided positive testimony concerning their relationship 

is a "bald assertion[]" unsupported in the record. Cummings, 321 N.J. Super. at 

170. Defendant failed to supply an affidavit or certification in compliance with 

Rule 3:22-10(c) detailing the potential testimony his wife may have given 

concerning their marriage. 

Additionally, defendant has utterly failed to overcome the strong 

presumption that counsel's approach to cross-examining his wife was a "sound 

trial strategy." Strickland, 466 U.S. at 689. The record amply supports the trial 

court's finding that counsel confronted defendant's wife with prior inconsistent 

statements and the financial benefit she stood to reap if petitioner were to be 

convicted of attempted murder and incarcerated. Judge Ryan concluded counsel 

chose a far more effective strategy of cross-examination by focusing on the 
18 A-1393-18T1

witness's financial incentive to have defendant convicted rather than trying to 

elicit from her that defendant had been a good and loving husband. We conclude 

that counsel's cross examination of his wife falls within the range of reasonable 

professional assistance. Ibid. 

We add with respect to the second Strickland prong that it is highly 

unlikely, much less reasonably probable, that any favorable testimony about the 

marriage elicited from defendant's wife would have changed the outcome of the 

trial, id. at 694, especially given the recorded conversations played to the jury 

in which defendant is heard conspiring to murder her. 

E.

We next address defendant's contention that even if trial counsel did not 

commit any single error at trial that by itself warrants relief, she committed 

multiple errors that, viewed cumulatively, are sufficient to entitle him a new 

trial. See State v. Jenewicz, 193 N.J. 440, 473 (2008) (recognizing that "even 

when an individual error or series of errors does not rise to reversible error, 

when considered in combination, their cumulative effect can cast sufficient 

doubt on a verdict to require reversal"). We hold that defendant has failed to 

establish that counsel committed any error at all in discharging her professional 
19 A-1393-18T1

responsibilities, much less multiple errors whose cumulative effect would 

probably have changed the verdict. 

Finally, defendant contends there are several factual issues in material 

dispute that lie outside the record, thereby warranting an evidentiary hearing. 

We agree with the trial court that defendant has failed to establish any of the 

requisite elements supporting the grant of an evidentiary hearing. R. 3:22-10(b). 

Notably, defendant has failed to support his PCR with any certifications or 

affidavits, rendering many of his arguments mere "bald assertions." Cummings, 

321 N.J. Super. at 170. Without competent proofs, defendant has not established 

there are material issues of disputed fact that lie outside the record. 

Furthermore, even viewing the facts in the light most favorable to defendant, he 

has failed to show a reasonable likelihood of success under the Strickland test. 

Preciose, 129 N.J. at 463. We conclude the present evidentiary record is 

sufficient to deny defendant's petition for PCR. Accordingly, the PCR court did 

not err in denying defendant's request for an evidentiary hearing. 

To the extent we have not addressed them, any additional arguments 

raised by defendant lack sufficient merit to warrant discussion in this opinion. 

R. 2:11-3(e)(2).

Affirmed.